PHILADELPHIA (KYW Newsradio) — The assault trial against former Philadelphia SWAT Officer Richard Nicoletti, accused of excessive use of force in pepper-spraying three protesters on I-676 three years ago, has resulted in a mistrial. The district attorney has announced that his office will retry the defendant.
Nicoletti was charged with simple assault and official oppression, along with related offenses, for an incident on June 1, 2020, during protests over the murder of George Floyd. He can be seen on video pepper-spraying three protesters who were kneeling on the Vine Street Expressway.
Fred Perry, an attorney representing Nicoletti, spoke briefly outside the Criminal Justice Center on Monday, saying there was no case.
"We always said from the outset that the prosecutor wouldn’t be able to show to a fair minded jury that Rich Nicoletti did anything other than his job that day. I think we now see a Philadelphia jury made up of reasonable, hard-working people. You are unable to prove anything other than he was doing his job," Perry said.
Fraternal Order of Police Lodge 5 President John McNesby responded to the mistrial with a brief statement: “The double standard of justice continues with D.A. Larry Krasner. He refuses to hold accountable the dozens of unlawful protesters and offenders who looted our great city, yet he works overtime to demonize a decorated police officer for doing his job under very difficult conditions. The FOP and its members will continue its unwavering support of officer Nicoletti.”
'It was heated'
The jury spent most of Thursday, all of Friday and most of Monday trying to decide if Nicoletti had violated the law or if his use of force was justified. “It was heated,” said one of the jurors after the mistrial.
During the trial, the jury had asked a few questions, including a request for clarity on the definition of “reasonable doubt” and whether it was relevant that Nicoletti is no longer working as a police officer.
Judge Roxanne Covington re-read the definition, and said Nicoletti’s current job status wasn’t discussed and shouldn’t be part of deliberations.
As of Friday, the jury was one person short, comprising just 11 jurors. One juror, who had been removed last week because of a scheduling conflict, was replaced by one of three alternates. The judge dismissed another juror on Friday after an incident, not disclosed in court, that prompted both prosecutors and defense attorneys to question each remaining juror individually to ask if their ability to be impartial was swayed by whatever happened.
One juror, who had been removed last week because of a scheduling conflict, was replaced by one of three alternates. The judge dismissed another juror on Friday after an incident, not disclosed in court, that prompted both prosecutors and defense attorneys to question each remaining juror individually to ask if their ability to be impartial was swayed by whatever happened.
The remaining two alternates were unavailable — one was involved in a car accident, and the other had a medical emergency — leaving the jury one person short to decide whether Nicoletti had committed a crime.
The defense wanted the jury of 11 to continue, while prosecutors wanted the alternates to be brought back.
'Hopelessly deadlocked'
The jury twice said that they could not reach a verdict. The first time, on Friday, the judge invoked the Spencer charge, instructing the jurors to go back to deliberation, see if they could figure out their differences and come to a resolution.
After that, the jury deliberated another five hours or so and, on Monday, said they were hopelessly deadlocked. That means the trial ends in a mistrial.
The trial began last Tuesday, May 2, and included testimony from all three accusers, and from police officials who said Nicoletti was following commands. Prosecutors played video and showed pictures of the chaos — and had argued throughout that Nicoletti used excessive force.
All three accusers are among a group of plaintiffs who reached a $9.25 million settlement with the city in a separate case relating to police tactics used during 2020’s George Floyd protests.
There will be a status hearing on July 13 to figure out will happen next.
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